What Has the Taliban Supreme Leader’s Monopoly of Power and Personal Control Done to the Attorney General’s Office?
By: Amin Kawa
Documents obtained by Daily Hasht-e-Subh demonstrate how Mullah Hibatullah Akhundzada, the Taliban Supreme Leader, transformed the Attorney General’s Office of Afghanistan into a competent institution under his direct command. He altered the Attorney General’s Office from a judicial institution to a supervisory office with the sole purpose of implementing his edicts. The Attorney General’s Office, now known as the “Chief Directorate of Supervising and Prosecuting the Decrees,” is responsible for overseeing the implementation of the Supreme Leader’s decrees, issuing arrest warrants, monitoring areas of deprivation of liberty, transferring prisoners from abroad to Afghanistan, and extraditing the accused. Additionally, the institution is tasked with proposing, arranging, modifying, and rescinding legislative documents.
The daily newspaper obtained a copy of the law issued by the Chief Directorate of Supervising and Prosecuting the Decrees, which was approved by the group’s supreme leader on October 24, 2022. The Taliban supreme leader has transformed the former Attorney General’s Office into the executor and reporter of his edicts, requiring all government officials to be responsible for the orders.
In a letter issued by the Directorate, the duties and authorities of the institution’s members were specified according to the law. Furthermore, the institution established certain committees to facilitate the implementation of the orders of the group’s supreme leader, although the formation of such committees was not clarified in the main law.
The first article of the law outlines the chapters and other articles of the Chief Directorate of Supervising and Prosecuting the Decrees, while the second article outlines the objectives of the Directorate.
The Directorate’s primary responsibilities include carrying out the edicts, preventing breaches of decrees and legislative documents, safeguarding the rights of individuals and society, regulating duties, promoting transparency, combating corruption, and holding the relevant authorities accountable.
Directorate’s Duties and Responsibilities
According to the fifth article of the law, the institution’s main duties are to prevent the concerned officials from disobeying Akhundzada’s orders and to hold them accountable for the loss of documents and evidence of the crimes. Furthermore, the general director of the newly-established institution is authorized to terminate the employment of the staff if they are found to be deficient in their performance.
Law experts have criticized the change in the Attorney General’s Office. Ahmad Reza Sadeqi, a lecturer and researcher at the Paris Institute of Political Studies who has also worked in Afghan law institutions, told Daily Hasht-e-Subh that “the Taliban supreme leader has changed a judicial institution into a personal supervisory office”. He added that changing the name of the Attorney General’s Office to the Chief Directorate of Supervising and Prosecuting the Decrees has brought a significant transformation in the nature of the institution. He further stated that the Attorney is one of the foundations of the judicial institution, as it prosecutes criminal cases after they have been detected by the Police, and the court then issues the verdict based on that.
The researcher also notes that the establishment of the new office makes it seem impossible to provide the suspect with a fair trial and to reach a just outcome.
The Attorney General’s Office is currently seen as the representative of the Taliban supreme leader, only overseeing the implementation of his orders in public and private institutions. However, it should be a defensive institution for protecting society from crime. Sadeqi stated that the attorney is considered the representative of the community in order to protect the society from potential crimes and to investigate and file lawsuits in the court, emphasizing that this is a paramount issue. A court is composed of judges, lawyers, and attorneys, with the judge arguing on behalf of society to prove the reality of the committed crime based on the documents and reasons. Therefore, if the attorney is excluded from the judicial institution, the trial will be one-sided.
The Directorate Proposes Changes to Legislative Documents
Unlike other political systems in the world wherein modifications and revocations of legislative documents are enacted by the public, the Taliban Supreme Leader has disregarded all legal mechanisms and mandatory rules in accordance with legislation and authorized a judicial institution for legislation. Furthermore, as stated in the 14th article of the law, Akhundzada has granted absolute authority to the members of the Directorate concerning the legislation.
Extraditing Accused and Transferring Prisoners from Abroad
The Thirteenth Article of the Law grants the right to obtain information from exiled Afghan nationals who have been sentenced to imprisonment, during their transfer to Afghanistan, and to process the extradition appeals of foreign nationals who are subject to imprisonment in Afghanistan. Additionally, the Directorate is authorized to process the extradition of foreign nationals who are suspects, in accordance with established principles.
This came as the law for the extradition of the suspects is derived from the international conventions that Afghanistan had signed. However, the Taliban no longer abide by such conventions, and Afghanistan does not have a constitution under Taliban rule, thus leaving the country in a legal vacuum.
Monitoring Deprived Areas of Liberty
The eighth article of the law grants the Directorate the authority to monitor detention and surveillance areas to ensure compliance with the regulations and respond to the grievances of those who are being held.
Legal experts have characterized the action of the Taliban’s supreme leader as a monopolization of power, emphasizing that Akhundzada is attempting to further exert pressure on legal institutions and gain control by altering the nature of the Afghan Attorney General’s Office. However, the law of the former Attorney General’s Office also included the supervision of deprivation of liberty. A former employee of the Attorney General’s Office told the Daily Hasht-e-Subh, “With the recent changes [in judicial institutions made by Akhundzada], attorneys will no longer exist in Afghanistan.”
Court Supervision of Rulings Implemented
The ninth article of the law states that it is the responsibility of the Directorate to monitor the final decisions of the court and assess any complaints made by the public on social media regarding violations of the supreme law.
Legal Oversight of Taliban Investigation Agencies
The seventh article of law has granted the Directorate the authority to oversee the legality of investigative agencies and the crime detection process in order to protect the rights and freedoms of individuals. This article states that the Directorate has the power to examine documents related to cases while supervising investigative agencies and to prevent arbitrary detentions, unjustified summons, and the imposition of unlawful restrictions on their rights.
Consulting with the Experts
The law has made clear that the Directorate is permitted to consult with experts if consultation is necessary during the supervision process.
Directorate’s Legal Terminology
The third article explains the terms used in the law. According to the Taliban, the law is defined as a collection of rules in line with Sharia that is used to regulate the internal affairs of a ministry or a directorate, ratified by an official and mandatory to be implemented. In contrast, during the Republic period, the law was defined as a collection of binding legal rules set to regulate public affairs by authorized officials in accordance with the 94th article of the Republic government’s constitution. This comparison reveals that the Taliban definition of law does not include any binding legal rules, implying that the group only imposes obligations and does not take into account individuals’ rights.
Another distinct point in the Taliban’s law is that the Directorate is overseen by a supervisor rather than the Attorney General. Additionally, the third article also outlines the areas to be supervised, including ministries, independent directorates, administrations, commissions, municipalities, enterprises, Taliban-run companies, the Afghan Red Cross, state banks, political missions, consulate generals in foreign countries, and other military and civil offices.
The military institutions mentioned in the article include the Ministries of Defense and Interior Affairs, the General Directorate of Intelligence, and military missions in other offices. According to the law, the private sector encompasses companies, private banks, trade unions, non-governmental organizations (NGOs), educational institutions, and health centers. Furthermore, the article mentions the term “searching people’s vehicles and places during detecting documents by supervisors”. Additionally, “Administrative corruption” is defined as any action that undermines the ruling system.
Directorate’s Role and Responsibilities in Ensuring Independence
In the second chapter of the law, the Directorate is defined as an autonomous institution, and no other agencies are permitted to interfere with it.
All employees of the Directorate are obligated to adhere to the orders of the Director while performing their duties, as outlined in Article 22 of the law.
Statistical Analysis of Crime Rates
The sixteenth article of the law grants the Directorate the official authority to compile and analyze crime statistics pertaining to any violations of the supreme leader’s decree and submit a report to the relevant office.
Supervisory Committees to be Established in the Directorate
In addition to the legal documents, a document that outlines the duties of the Directorate, divided in order to more effectively carry out the orders of the group’s highest authority, has been created. This, however, raises questions about the Directorate’s authority and suggests its marginalization.
The Chief Directorate of Supervising and Prosecuting the Decrees stated in a statement that only those who wear turbans and hats and adhere to the teachings of Prophet Mohammad are eligible for membership in the institution.
Attorney General‘s Office Authority and Jurisdiction in Toppled Republic Government
The Attorney General‘s Office of Afghanistan had a formation law consisting of eight chapters and forty articles, as per Section 16th and Article 64th in the Constitution of the Republic Government of Afghanistan. This law was primarily intended to protect the rights and freedoms of individuals or the public, in order to consolidate the rule of law and ensure justice. According to the law, the toppled institution was authorized to investigate crimes, file lawsuits against the accused in court, supervise the trial of the suspect, enforce court rulings, and oversee places of deprivation of liberty. The law declared the Attorney General‘s Office to be a part of the government‘s executive power, but it was emphasized that it should act independently.
The judiciary of Afghanistan was comprised of the Supreme Court, the Appeal Court, and the City Court. Their primary responsibilities included investigating criminal cases, collecting evidence to prove or disprove the crime, requesting additional documents related to the crime, issuing summons or arrest warrants, obtaining permits for search warrants, apprehending suspects, and preventing unlawful detentions in areas of deprivation of liberty.
Supreme Leader of Taliban Expresses Views on Legislation
At a meeting with the Taliban governors in Kandahar on July 27, 2022, Taliban Spokesperson Zabihullah Mujahid released a statement in which he reported that Akhundzada had rejected manmade laws, insisting that only Sharia should be implemented. The Taliban leader‘s audio tape further stated that they were working to establish an absolute Islamic system in the future, and that religious scholars would assess the laws of the ministries that had been enforced over the past twenty years, revoking those that were oppressive and contrary to national interest.
Tracing the Origins of the Dismissal of the Attorney General‘s Office‘s Investigation and Supervision Authority
After a meeting with the counsel of religious scholars in Kandahar, Akhundzada revoked the investigation and supervision authority of the Attorney General‘s Office of Afghanistan and delegated the responsibility of supervising and investigating legal cases to the group‘s General Directorate of Intelligence. On August 20, 2022, a letter was issued by the former Taliban Prosecutor‘s Office instructing all relevant authorities not to accept any files sent through investigative agencies or other similar offices for investigation.
Experts Weigh in on Legal Matters
An anonymous attorney of the former Afghan government has stated that the Attorney General‘s Office no longer exists in the country, and that the Taliban have effectively dismantled the entire judicial system. According to the attorney, the Taliban have achieved three objectives by suspending the judicial institution: first, they have eliminated all legal institutions which had been making progress over the past two decades, despite their flaws; second, the Taliban‘s supreme leader has taken another step to gain control over decision–making and strengthen his power among the Taliban; and third, by entrusting the office to their long–standing and powerful Tajik comrade, the Taliban are attempting to reduce his role in decision–making.
Mirza Rafat, a former advisor on legislative affairs in the parliament of the deposed government, believes that by changing the name and executive nature of the institution, the Taliban have effectively dismantled the judicial office which was responsible for investigating cases and filing lawsuits before the courts. Rafat claims that the Taliban have transformed a professional institution into an office for implementing the edicts of their leaders by removing the jurisdiction of “investigation and supervision.” Expressing his skepticism about the prosecution of legal cases after the suspension of the prosecution general office, Rafat argues that neither the Ministry of Justice nor the Supreme Court is capable of executing investigations into legal cases in the absence of an attorney, as investigations into legal cases require professional work that can only be performed by trained attorneys. He pessimistically remarks that ensuring justice will become difficult following this decision.
Rafat also questions the rule of law established by the Taliban, stating, “The Taliban have created laws, but the origin of these laws is uncertain.” He explains that if a law is created by the will of one individual, it is unreliable.